I recently read Jan Crawford Greenburg's Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. Like co-blogger Orin Kerr, I agree that it's a "must-read." Indeed, it is probably the best book about the Supreme Court that I have ever read that was written by a journalist. Unlike some members of said profession, Greenburg has a solid understanding of both conservative and liberal legal thought and she uses it to good effect in trying to understand what the Court has done in the era of Rehnquist and Roberts. However, the real focus of the book are the Supreme Court nomination battles from Robert Bork's abortive nomination (1987) to Sam Alito's. There are numerous interesting revelatoins such as:
1. In 1986, Scalia was picked ahead of Bork in part because he was younger (and thus likely to stay on the Court longer), and in part because some of the people in Reagan's Justice Department actually thought that Scalia was more conservative than Bork.
2. Reagan's DOJ staff had correctly predicted in advance that Anthony Kennedy would not be a solid conservative vote on the Court, which is why he was not appointed until after the nominations of Bork and Douglas Ginsburg went down in flames.
3. David Souter was even more "stealthy" than is often believed. He and his backers were apparently able to convince not only President Bush 41, but also such DOJ officials as Federalist society co-founder Lee Liberman (now Lee Liberman Otis), that he was a conservative jurist.
4. Greenburg adds to the growing pile of evidence that Justice Thomas is not merely an acolyte of Justice Scalia's. She even contends that Thomas has influenced Scalia more than the other way around.
5. Sam Alito was Harriet Miers' personal first choice for the nomination that (at first) went to Miers herself. It was President Bush who insisted on choosing a woman as the nominee, which resulted in the decision to nominate Miers.
6. Attorney General Alberto Gonzalez recommended against the Miers nomination, correctly predicting that conservatives would go ballistic.
7. Bush withdrew Miers' nomination in large part because of her poor performance in mock interviews and meetings with GOP senators, not because of the revolt on the right. He believed (wrongly in my view) that conservatives would have come around to supporting Miers.
8. Sixth Circuit Judge Alice Batchelder, in my view possibly the strongest potential conservative female nominee that Bush could have picked, was removed from consideration because of a very minor conflict of interest in one of her cases (she had failed to recuse herself from a case that involved a company in which her husband - unbeknownst to the Judge herself - owned stock through a mutual fund).
I do have a few reservations about the book.
First, Greenburg is convinced that, with the Roberts and Alito nominations, conservatives have won a decisive victory in the struggle for control of the Supreme Court. I am more skeptical. The Court currently has five conservatives and four liberals, with one of the conservatives (Kennedy) often prone to defecting (as Greenburg acknowledges). Conservative control of the Court is therefore quite tenuous (though more solid than before Bush's two appointments). A lot depends on who gets to pick the next few nominees. If a liberal Democrat becomes president in 2008 (especially with a Democratic Senate majority), Bush's handiwork might well be undone.
Second, I think Greenburg sometimes overstates the importance of abortion and other "social issues" relative to other matters at stake in the battle over the judiciary. While it is true that the former are especially prominent to the general public, the conservative and liberal legal elites that she focuses on in the book also care intensely about questions such as federalism, property rights, affirmative action, free speech, and economic regulation. Many of the conservatives and libertarians who opposed Miers' nomination did so in large part because of the opaqueness of her record on these latter questions (myself included). And the anti-Miers backlash was primarily an elite backlash rather than a popular one.
Finally, it is often difficult to evaluate Greenburg's claims because, like Bob Woodward, she usually does not footnote or otherwise identify her sources. While this may be an inevitable aspect of investigative journalism, it does make it difficult for outsiders to assess the book's validity.
Such caveats notwithstanding, this is a great book, and anyone interested in Supreme Court nomination battles should definitely read it!
Related Posts (on one page):
- No More Supreme Picks for Bush?
- Jan Crawford Greenburg on Clarence Thomas:
- Jan Crawford Greenburg's Supreme Conflict:
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I am not sure I would characterize it as an "order" as opposed to an unambigious statement of his plans that she could do with as she pleased.
Mr. Somin, thank you for your very interesting views on this matter. I think that ultimately, while issues less prominent to the public matter to more to elites, it may very well be that public opinion determines the composition of the Supreme Court. So, it might be justified for Greenburg to focus on issues more prominent to the public.
Imagine the backlash if Roe/Casey were overturned. I can't imagine a single thing more likely to ensure a liberal judicial counter-revolution due to public backlash from such a result.
Yes, some people would turn needlessly hysterical. Since the question would simply be returned to the states, any hysteria would simply be a public temper tantrum, not meaningful, principled dissent.
Your blithe conclusion that Congress would not be free to legislate in the abortion area would come as quite a surprise to the actual Congress, which is already doing so.
Oppose Roe or support it as you choose, but the notion that reversal would return the issue to the states is an absolute myth, and I hate to see it spread.
This is third-hand, so take with a grain of salt, but someone I know asked an insider (maybe Otis or someone else at that level) how Souter was able to convince the Bush administration that he was a conservative, and the answer was: "He just lied."
The most shocking pre-Miers revelation is that the Reagan administration fully understood what kind of Justice Kennedy would turn out to be, yet appointed him anyway. Reading about the Miers nomination is nothing short of chilling. I feel very much that I didn't just live through those events, I was involved in them (albeit from the far flank of the sidelines); at the time, I think the dissenters thought that the White House had lost its mind. If Greenburg's version of events holds up, it was far, far worse than any of us could have imagined; the colossal stupidity, the sheer wrong-headedness of everything about the approach is enough to make one seriously reconsider whether Bush getting another vacancy is desirable. Most galling of all is that when Laura Bush went on television to tell those of us who opposed Miers that we were doing so out of sexism, her husband had settled on Miers primarily because he demanded an all-women shortlist. The hypocrisy is appalling.
This is a really, really great book. I can't say that enough. As Ilya notes, Greenburg demonstrates a clear understanding of both sides, but more surprisingly for someone in her industry, chooses to pitch straight down the middle, sympathetically (and more-or-less accurately) explaining debates over originalism and legislative history. This evenhandedness would, on its own, qualify Greenburg as the best Supreme Court reporter in the country.
The fact that Congress engages in legislation far beyond any Constitional warrant is neither news, nor any reason to stop caring that abominable decisions get overturned.
I'm sorry, but I flat out just don't believe that. Nobody can watch the Souter hearings and say that Souter mislead Senators, or that he didn't make clear what kind of Justice he'd be. So if what Souter said to the President was at variance with what he told the Judiciary Committee, don't you think that would very loudly ring alarm bells in the administration? I don't think Souter lied to anyone; I think there was just a complete failure in the Bush administration to ask the right questions, and to appreciate the significance that Souter would be dealing with most federal questions for the first time on the Supreme Court.
I wonder if, in retrospect, Luttig feels responsible for Souter? According to Greenburg's version of events, he ought to. If Luttig hadn't torpedoed Starr, Souter would never have been under consideration for the seat.
This might have been true at the time. It's fair to suppose that Bork's more recent public statements reflect a change in his temperament after his nomination failed.
His New Hampshire opinions were basically moderate (although not as liberal as his U.S. Supreme Court opinions).
His public speeches were liberal on some things, and moderately-conservative on others.
If they had done their due diligence, they might still have thought he was a moderate (rather than the liberal he has become), but they would not have had the delusion that he was a conservative.
That they thought he was a conservative was a sign of negligence on their part.
It is said that the gullible Bush judge pickers were taken in by this, reading into his possession of the (faux) Federalist Society mug that he was a conservative.
(They should have instead studied his rulings on the New Hampshire Supreme Court, which were moderate, or his public utterances in his years as a state judge, which were increasingly liberal in tone, foreshadowing his very liberal jurisprudence on the U.S. Supreme Court. Instead, they seem to have focused on his relatively conservative record years earlier as New Hampshire's state attorney general).
Nor is it an excuse to falsely claim that reversing Roe would return the abortion issue to the states. Perhaps in your fantasy constitutional regime the issue would not be a permissible subject of federal legislation, but one should not make blanket statements without disclosing that they only hold true in one's own fantasy world.
I have to back up the point that others have made. While there might be a temporary and false backlash, they would not need a "liberal judicial counter-revolution" to correct the problem. Rather, they would simply need to vote for political candidates that won't ban abortion.
It is hard to see how the Liberals will get any more mileage out of this issue than they currently do. Futhermore, as several have noted on this site before, it is not clear that the Left-Liberals should really like Roe vs. Wade as much as it does. It is based on some legal theories that Left-Liberals would not exactly endorse.
True, but last I heard, a majority of American's also oppose overturning Roe. That many may not realize the irony of their positions does not make citing them any less useful.
You say this like it's a bad thing.
1) Miers was initially suspicious of Roberts because he had not been outspoken on conservative issues;
2) Bush's reason for choosing Miers was precisely so as to do the opposite of his father in picking Souter. I.e., his father picked someone that he didn't know anything about, and then Souter veered left. Bush wanted to pick someone who was both (a) a confirmable female (misjudged on that part), and (b) extremely well-known to him, such that he could be confident that she would never veer left.
This seems clearly correct, but just to add to it, Justice Alito had such a "conflict of interest" as well. His issue was similarly trivial in the big picture, but at least there was a little substance to it because he had promised during his prior confirmation process to recuse himself from any cases involving the company in question (although recusal was not actually mandated under the relevant judicial guidelines). So color me unconvinced that Judge Batchelder was really rejected for that reason, or even primarily for that reason.
Ilya:
This remark strikes me as awfully sloppy. What exactly do you mean by "four liberals"? What's the benchmark? Are you saying that four Frank Murphy's are on the court, marching in lockstep as identical 1968 versions of Wm Douglass?
And I'm especially curious given your turn of phrase, "[i]f a liberal Democrat becomes president . . . " [My emphasis.] Again, what exactly is a "liberal" Democrat[ ] president as compared to, say, "four liberals" on the Supreme Court? And if you need to use the word "liberal" before Democrat, you must be suggesting that the "four liberals" on SCOTUS are more liberal than all Democrats except those whom you'd call a "liberal Democrat".
As to their being four liberals on the court. I'm also unconvinced. I am probably more casual in my Supreme Court watching than most other working lawyers, but the fact is a lot of the "liberal" decisions that conservatives have decried over the years have been written by conservatives who were appointed by a Republican president. Let's face it, the right has won the Supreme Court appointment game, and still can't get the decisions it wants. Which just goes to show you how well our founding fathers built in their checks and balances.
I suppose definitions such as "liberal" and "conservative" are relative, but I think most lawyers would accept that Breyer, Ginsburg, Souter, and Stevens vote and write opinions on the left/liberal side of the ledger.
The fact that Stevens was appointed by Ford and Souter by Bush 41 hardly makes them conservatives.
If you seriously claim that Souter and Stevens are "conservatives", as you seem to do, how do you define the term?
I consider Stevens a conservative in the same way I consider Gerald Ford a conservative. Both the Court and the country have changed around him. I wouldn't disagree with labeling Souter as a liberal, as long as we're all clear he's a million miles from being William Brennan.
Well, if everyone except you have changed, and you find yourself at the liberal end of the spectrum of everyone, can you still call yourself a conservative?
Also, you could have paraphrased the rest of the relevant section from the book, which does support my reading and cuts against yours:
We can just agree to disagree on whether her husband's cancer was a good reason for her decision.
How does the text you quote "support [your] reading and cuts against" mine? Your reading, per your comment above, is that "Rehnquist ordered O'Connor to retire a year earlier than she had planned," emphasis added. The text that you quote -- even thus lifted out of context -- says no such thing: Rehnquist "would stay [another year], and she should either step down now or be prepared to serve longer than she wanted," emphasis added. What you suggest is my "reading" ("Rehnquist told O'Connor that he didn't think there should be two vacancies at the same time, and since he planned to retire at the end of the next term, O'Connor should either retire at the end of this term, or in two years") seems to me to do little more than paraphrase precisely that text! ;)
This is not an exercise in which I care to engage without a client/matter number. I'll just note my utter amazement at the suggestion that Souter could possibly be as liberal as Brennan.
When lawyers arguing before the Supreme Court would make a point that seemed to reach a little, the late Chief Justice sometimes used to ask lawyers "what's your best case for that?" ;) Well, if you don't have a best case for that proposition, if couldn't put your finger on any particular examples, then I guess I've got to ask what your basis for saying that Souter isn't as liberal as Brennan? Surely you must have in mind some paradigmatic example of a Brennan ruling that Souter would never have joined, or vice versa? It seems to me that Souter sung Brennan's praises at his confirmation hearings, and has been aspiring to live up to and expand Brennan's legacy ever since.
Souter was replacing Brennan, of course he said nice things about him! Try and be a little honest here.
Declaring the death penalty unconstitutional, upholding explicit racial quotas, holding that a state couldn't regulate its own school districts, trying to enjoin the Vietnam War (okay, that one was just Douglas). The list goes on.
I'll leave it to other readers to decide whether I misrepresented the account by my choice of words and excerpt selections.
There is indeed some discussion in the book of what the Court has done since Roberts became Chief Justice.
The benchmark is that they vote with the left on most issues that come before the Court, particularly the controversial and important ones. The current liberal bloc on the Court actually votes further to the left than William Douglas on many issues, including abortion, affirmative action, free speech, and others (though not on criminal justice issues).
A question for Linda (that bears on my and rothmatisseko's disagreement about whether Rehnquist intended to coerce O'Connor's retirement): do you get the sense that Rehnquist really believed that he was in sufficient health to serve another term? At that point, did he believe that he was getting better (or at least, that his condition had stabalized)?
Simon, I think you're right that what Rehnquist thought about his health prospects is relevant to what the proper reading is of the Greenburg passage -- I think I took the book at its word. I'd also add to that whether he knew O'Connor's husband was going downhill with Alzheimer's, and whether he knew that because of that she planned on retiring in one year rather than two (or none).
It's too bad O'Connor had to retire to be with her husband. I didn't always agree with her, but she is a great jurist who's still in her prime -- she's still sitting in circuit courts and issuing opinions! And overall she helped move the law in a positive direction.
I take a much dimmer view of O'Connor than do you, and that opinion is reinforced repeated in this book. O'Connor comes off badly - she seems far more concerned with being at the center of the court than she is with where that determination ends up placing here; she takes umbrage at more junior colleagues taking direct stances, at not being more deferential to their seniors; "in many ways," she "remained the former state legislator she had been before her nomination" to the judiciary; she "lacked a defined legal philosophy" and had no "clear legal framework for deciding cases, ... [so] turned to instinct." The only bad thing about her departure, as far as I can tell, is that it puts Kennedy in effective control of the court on several vital issues -- and he's even worse than she was! ;)